Posted
by
kdawsonon Tuesday December 22, 2009 @04:00PM
from the not-a-troll dept.

Cytalk and other readers tipped us to Microsoft's loss in a US appeals court, in a patent case brought by Canadian company i4i. Microsoft must now pay $290M and either stop selling Word (and probably Office) by January 11, or somehow work around the patent by that date. A Seattle PI blog reports that Redmond has a few options left: "In a statement, Microsoft said it was working hard to comply with the injunction. The company also said it is considering further legal options, including possible requests for a new hearing or a writ of certiorari from the US Supreme Court."Update: 12/22 20:47 GMT by KD: Tim Bray has up a blog post explaining why it would be no great loss if Microsoft dropped the "custom XML" feature in dispute. Update: 12/22 23:04 GMT by KD: Reader adeelarshad82 pointed out a statement released by Microsoft earlier today, which says in part: "We expect to have copies of Microsoft Word 2007 and Office 2007, with this feature removed, available for U.S. sale and distribution by the injunction date. In addition, the beta versions of Microsoft Word 2010 and Microsoft Office 2010, which are available now for downloading, do not contain the technology covered by the injunction."

What is their tune? There haven't really been cases where MS is patent trolling other companies. Actually they've even given some patents to neutral third party, as open patents. But they have to go by the system and patent their things to protect themself from patent trolls. Just like Google, Apple and everyone else.

The entire time, Microsoft was open to a patent licensing swap. This is what Microsoft does with its patents. It swaps licenses.

TomTom wanted to "Win", but eventually and as predicted, took the swap. They finally figured out that they were guilty as sin and were going to lose.

IMHO TomTom was stupid. They should have gone for the swap to begin with, because thats win-win. Now they have put themselves into a position where they have no IP left that can be used as leverage against competing products backed

NOt likely. Microsoft has been stockpiling a massive arsenal of patents (as has IBM) in order to use patents as weapons. I really doubt that they would push for change in the right direction because it would likely mean that they'd lose a lot of their weaponry in doing so.

I don't think that'll be the solution... Since Microsoft is trying to do that anyway. They've been quite involved in setting up defensive patents. In fact, the idea of defensive patents seems quite absurd to me anyway. If you come up with an idea, but you aren't planning on making anything with it... Why not just release it? Or is the idea that they *could* do something with it, and they don't want anyone else to know what that something is?

No, the idea with "defensive patents" is that, when faced with a patent suit by one of your competitors, you can dig through your portfolio of defensive patents and use one against them, because with so many things patented, it's almost a certainty that your big competitors are infringing on your patents. This actually happened recently; I forget the case now or the players, but some big company A sued some other big company B for patent infringement, and then was countersued by B for infringing on one of

The powerful (business leaders/politicians) cannot make nuclear bombs go away by changing the laws of nuclear warfare. On the other hand, if a coalitions of large IT companies decided to lobby for patent reform, then will probably get whatever laws they want.

Yep, the laws are basically the product of whatever well-heeled lobbyists want. The problem is that these big companies are stupid, and still cling to the idea that being able to patent anything will allow them to build up giant patent portfolios they can use to lock out any smaller competitors, and it simply doesn't work with patent trolls because they don't make anything and thus don't infringe on anything.

Nuclear devices work by the laws of nature. There is nothing we can do about that, whether we like them or not.

Patents are entirely products of law. If the political will existed, congress could simply pass a bill abolishing them immediately(or, more realistically, make any of the numerous reform options that have been discussed and dissected for years now). This is the first major difference.

I thought it odd that they calculated the damages on the assumption that, had Microsoft paid royalties on the patent, they'd have pushed the price of MS Word from $90 to $500 with no loss of sales. It seems to me that if the traffic would support that price, Microsoft would already have been charging it!

Where did the figure of 610000 licenses come from? Because I am sure MS has sold far more than that, which would bring the price per license way down. Even if they only sold copies to 1 out of every 10 US citizens it would be 30M copies.

I guess that they think the price difference would be for those companies who would otherwise have bought the customXML addon instead of having it bundled. Most consumers would not use the feature anway, let alone buy it. So the extra price is entirely down to those corporate customers who would have shelled out for the extra feature.

Personally, I think that's a very small number. If the addon was bundled with Office Premium Plus Extra Ultimate edition, then a lot of corporates buy it regardless. I know we

"Microsoft must now pay $290M and either stop selling Word (and probably Office) by January 11, or somehow work around the patent by that date."

They could, you know, settle with i4i and license the patent from them?

Don't get me wrong, I'm not saying I think i4i's patent is legitimate (I'm not really very familiar with this case - somehow missed it before this, will need to study up on it more later). I'm just saying, the list of options seems to leave out one pretty big possibility.

Because the $290M only covers past 'infringements'. i4i would settle with Microsoft in order to get a royalty on all future sales of Word. Trust me, if Microsoft doesn't think they can prevail at the SCOTUS, they *will* settle with i4i instead of not selling Word any longer (even if it's just to buy them time to work around the patent, unless they already have a new version of Word ready to launch which has such a work-around).

i4i will settle with Microsoft, if Microsoft offers them enough cash, because any

I think it's more likely we'll see tort reform, which will probably make it so that only the most wealthy individuals and corporations can risk a lawsuit. Small companies like i4i will then no longer have options. If we're lucky, the tort reform will also affect patent and copyright trolls, but I'm pretty sure whatever they do to fix it will probably increase the durability of IP overall and generally punish everyone else.

Well, on the one hand, the patent gives i4i the right to exclude others from practicing the claimed invention. The court has already told MS that Word is infringing, therefore selling Word would violate the patent rights. MS could simply removing the infringing feature and it could continue selling Word. MS is in control of this aspect.

On the other hand, at the moment, i4i has very little incentive to offer MS any sort of license. i4i won at the lower court and on appeal. Plus, I believe the story goes that they approached MS and MS sent them away and then went ahead and implemented it anyway. They will be able to demand infringement-sized royalties the closer it gets to January 11.

Something doesn't add up here. Why is i4i not simply willing to license the rights to use the patent to MS (for an exorbitant fee). Why ask for it to be removed? Seems like a license to print money.

If you read about the issue in more detail, you'll discover that i4i tried for several years to get MS to pay for a patent license, and MS stalled and delayed and equivocated about it. The lawsuit was a last resort, and AFAICT the damages are so high as a punitive measure. In theory, MS shouldn't be able to get away with ripping people off just because they're the big kid in town.

But yes, I'm sure i4i could have done things in a better way -- they're not completely free from blame for this mess.

Its the sound of the patent system beginning to crash down. RIght now there are two choices

1) Take the fundamentally broken US system and roll it out across the world2) Take the rest of the worlds approach that software can't be patented and roll it out to the UK

The scary thing is that even with judgements like this and the patent trolls out there we are actually seeing the likes of Microsoft push for option 1.

Patents will be the death of innovation if the system continues in this way, particularly if the US judgements are assessed at insane levels of cost. If Microsoft had known about this patent when starting the development they'd have bought the company for less than this judgement.

Patents will be the death of innovation if the system continues in this way, particularly if the US judgements are assessed at insane levels of cost. If Microsoft had known about this patent when starting the development they'd have bought the company for less than this judgement.

I can't for the life of me figure out how someone seems to have gotten a patent on XML that they've not been slamming the rest of the industry with.

They didn't. It's not a patent on XML -- it's a patent on a specific way of manipulating and processing structured data like XML. Most people don't use it (i4i have stated that they do not believe OpenOffice.org or KOffice are infringing, when they were asked). Microsoft do, and refused to pay for a patent license.

Microsoft are lieing in a bed they made for themselves, and no-one else need worry.

A writ of certiorari is a request from a higher court to a lower one informing it that it wants to review the case at hand, and that all records and transcripts from the trial should be sent from the lower court to the higher one.Filing a request for writ of certiorari with the US Supreme Court is in essence a fancy way of saying "We're attempting to appeal to the US Supreme Court". There is, of course, no guarantee that the Court would take the case, the success on petitions for certiorari is something on

Thank goodness that all of the apps I've ever been involved with date back from the old days when this was all done with SGML. That stuff is probably all out of patent (if it ever was patented) and into the public domain by now.

You are wrong. The lawsuit and patent are very narrow and only affect an obscure feature of Microsoft Word that is used by a very small percentage of users. They do not have anything to do with the Office Open XML file format (otherwise this suit wouldn't just be Microsoft Word, it would be all the apps).

The feature i4i provided was the ability to use MS Word as a general XML editor by embedding xml codes in the word document. It did this in a special way which was, according to the court, copied by MS Word's Custom XML feature. The grandparent is kind of correct; there's no good reason for Custom XML to be in Microsoft's OOXML so whilst it is a feature of OOXML it's doesn't really have much to do with the OOXML format in general, just one feature of that format used only by MS Word.

(BTW checking this took a huge effort, and big searching and I'm still not sure it's the whole truth. It's astounding how much of the media, both "main stream" and alternative/blog is covering this whilst trying to pretend that i4i never did anything useful at all.)

In the meantime, a company which was issued a patent in 1998 for the idea of maintaining a document's format in a separate file, has been awarded $200 million to a Toronto-based collaborative software firm, whose engineers claim they had the idea first. The case made by i4i Limited Partnership in its March 2007 suit essentially boiled down to the allegation that the entire move toward XML by Microsoft was a willfully executed strategy against i4i.

In 1994, just as HTML was first being investigated elsewhere as a vehicle for networked hypertext, i4i Ltd. applied for its US patent. For the time, its concept was novel as any notion of XML would be years away, and the applications for which XML would be used had yet to be envisioned.

"Electronic documents retain the key idea of binding the structure of the material with its content through the use of formatting information," reads the 1994 patent's background. "The formatting information in this case is in the form of codes inserted into the text stream. This invention addresses the ideas of structure and content in a new light to provide more flexible and efficient document storage and manipulation."

Did i4i create XML? Not specifically, though it did receive a patent for one of its principal ideas, years before the W3C began to come to the same conclusions. However, despite being what many observers at the time considered late to the game in adopting XML, it is Microsoft that ended up the loser in what some analysts are saying could be among the top five willful patent infringement awards in US history. The company has made clear it will appeal the jury's verdict.

In the meantime, a company which was issued a patent in 1998 for the idea of maintaining a document's format in a separate file

But, what's astounding to me, is in 1995 I was using SGML as a method of separating the document content from its layout. The layout wasn't kept in a separate file, but there were mechanisms to apply publishing layout to SGML based on rules. That was the whole point of SGML and its predecessor GML.

Heck, in 1995 Arbor Text had an SGML editor which could apply formatting to SGML documents for the purposes of publishing, and the company I worked for was helping people to install SGML editing and layout systems.

I'm not 100% convinced that these actually represent novel claims. They may not have been described in terms of XML, but the state of the art with SGML sure as hell was doing the whole "maintaining a document's format in a separate file" before this.

Can anyone who understands this a little more identify what specifically is required to infringe on this patent?

It included several internal parsers, including one for a HTML-like language that separated the content of the database from the on-screen expression. Basically, my own miniature implementation of Mozilla.It was sold in musea throughout Germany.

I guess that should count as prior art. I'm pretty sure we could dig up the sourcecode if asked nicely.

(*) As an aside, I'm still pretty proud of that software. It runs like a charm on anything from windows 3.11 to Vista, will stay stable even with less than 1 KB of free memory (windows crashes before this program does) and we never had to do a bugfix. Written in around 20000 lines of C++. Chalk one up for rigorously applying and checking invariants and pre- and postconditions.

The case involves the algorithms MS uses to open and display what they call "custom XML". It does not involve a patent on XML itself, and only affects Office 2003 and 2007, not 2010. Stop being so hysterical.

I despise Microsoft, and wish they'd been broken up and Gates and Ballmer put behind bars for what they've done, but this patent is still absurd. The concepts have been around for forty years. The patent office is full of inept halfwits, and Microsoft's big failing here is that it's too cowardly to finally put its money into wiping out software patents.

Generally patent troll means a company which doesn't produce anything but gathers (generally buying) other peoples patents; waits for related technologies to become valuable and then runs around threatening to sue people.

i4i actually produced an XML editing extension

i4i went around trying to sell their technology

i4i still has a number of customers

i4i actually fought to the end of the law suit and

i4i has a specific patent and doesn't try to claim close by technologies like ODF

It's fucking metadata in a markup language for k-rist's sake. The patent is ludicrous, and whether or not the company is a troll, it only goes to show just how retarded the patent system is, and why software patents should immediately be outlawed. It's like me trying to patent CSS.

In addition, instead of violating someone else's patent (like the last two instances in under two weeks of violating someone's copyrights by stealing code), they could have just hmmm... this is a tough one....

OH! I remember... they could have just licensed the patent/code/whatever like numerous other companies do in similar situations. So, I dont feel bad about this happening to them. They've done the steal/"borrow" code and ideas thing numerous times in the past...

I think you're wrong. From the coverage I've read, it's a method of processing and manipulating XML documents, and they designed an piece of XML editing software around it which they showed to Microsoft and Microsoft then stole the ideas from.

It does not predate XML, and has nothing to do with XML-based standards. For instance, i4i have stated that they do not believe OpenOffice.org, KOffice, Symphony etc. infringe their patent.

XML is pain in the ass anyway, and I hate every time I have to use it. The format is way too complex to do little things and its processing takes way too much resources compared to the usual binary formats.

So, how do I pick the best one (or at least the "good enough" one) to use? The one that I can trust to be fully compliant, and that will be kept maintained and ported to new language/framework versions? Let's say, I need one for C++.

That's not necessarily true...

You misunderstand me. What I meant is that there are kinds of XML documents in which tags take up the minority of the content, and the majority is text. XHTML is a classic example; DocBook is another one. E

Your post is a load of horseshit and furthers my fears that you're a Microsoft shill (your bing posts are borderline brilliant).

This is stupid because Microsoft was moving here to open XML standards from their propriety.doc format. It's a common thing to blame MS for their locked in, own formats since Open Office and others couldn't open them.

What's your point? That since they're being attacked by a patent troll I should forgive them for everything fucking stupid and backward they've done?

"A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations. The system, for use by computer software developers, removes dependency on document encoding technology. A map of metacodes found in the document is produced and provided and stored separately from the document. The map indicates the location and addresses of metacodes in the document.

Briefly reading over the patent in question, I'm curious how this patient was granted given that it resembles IBM's Generalized Markup Language (GML) from the 1960s and the Standard Generalized Markup Language (SGML) standardized by the ISO in 1986.

The patent cites SGML as prior art. The difference is that, with SGML (supposedly) the meaning of the codes is defined in the standard. By analogy with programming langauges, the tags are constants, not variables. The claim is (far as I can tell) for the idea of letting the tags be variables, whose meanings reside in separate lookup table.

It seems to me, though, that this covers the use of XML schemas -- at least, if they're constructed under program control.

I'm curious how this patient was granted given that it resembles IBM's Generalized Markup Language (GML) from the 1960s and the Standard Generalized Markup Language (SGML) standardized by the ISO in 1986.

To answer your curiosity, it is because existing prior art is not involved with the granting of a patent.In other words, it doesn't matter if prior art exists or not, in order to get a patent approved.

Prior art is only used as a defense when being challenged by a patent holder.

So if it truly does count as prior art, it is fully up to Microsoft to present it at the patent case to get the patent thrown out.That can't happen until after Microsoft is sued for patent violation, which in turn can't happen until s

To answer your curiosity, it is because existing prior art is not involved with the granting of a patent.
In other words, it doesn't matter if prior art exists or not, in order to get a patent approved.

What? The USPTO would beg to differ. You need to declare any prior art you are aware of [duty of disclosure] or the patent can be invalidated for inequitable conduct.

Furthermore, the patent examiner is *required* to make a search for prior art during the review process.

It's been a while but if I remember the i4i product allows you to author data in MS Word based on a document type definition (DTD). The use of Word to do so is not new. Another small Ottawa Canada based company, Microstar Software, were first to do so with their product called Near & Far Author for Microsoft Word (http://www.encyclopedia.com/doc/1G1-16732008.html). This the same company that brought Near & Far view, a graphical view of SGML DTD, to market. They started working on Author around 1994-

I assume you know that OOXML is a proprietary MS format couched in the clothing of an international standard? That it was only approved by ISO after MS manipulated the procedures, bribed partners to stack committees, and completely destroyed the technical committee? Where MS is now abusing the "correction of drafting errors" mechanism to make material changes to the standard so that it continuously conforms to the behaviour of MS's proprietary software (including reversing changes specifically made by the ISO committee!) -- instead of having their software conform to the so-called "standard".
This is not to say I support software patents, especially on trivial ideas like a specific format for embedding proprietary data in an XML file (what i4i has "invented"). However, you should not fall for the MS "openness" scam. Just because it's XML doesn't mean it's not Microsoft.

On the other hand, ODF is a proprietary SUN standard couched in the clothing of an international standard.Yes, ODF does seem to be somewhat less baroque and better documented then OOXML, but they are in fact both formats created for a particular piece of software which has been extracted for wider use.

I'm sure you both don't quite understand XML then. It's about data being accessible in a tree instead of a grid. It has similar benefits to using OO programming over procedural^w^w^w^w^w^w^w^w similar benefits to using highways instead of small streets to travel long distances.

XML gets people who have no business doing serialization and parsing out of that business entirely. Instead, we have schemas (either purely ad-hoc, or formalized) and common libraries to express those needs. Like any computing tool, XML has been used for good, bad, and ugly ends... but it brought the idea of schema-based document format and consistent Document Object Model (DOM) APIs to the forefront of data/document handling. In essence, this is a two-level interface: the document schema (a first-class

That may be true, but there are better options these days, less verbose, easier to parse, etc, like YAML.

The problem is, there's YAML, and there's JSON, and there are S-expressions, and a dozen other ad-hoc formats; and no-one can agree on which one of the "better" formats to use as the data exchange format.

Consequently, there is no single standard JSON or YAML or... parser in Java libraries, or in Qt - you need to get a third-party one (and to do so, you need to pick one of the umpteenth alternatives for your platform).

Meanwhile, with XML: any language and any platform today has at least a basic parser as a

For me, it makes data semantic-free so that it can be passed between systems, and changes on the transmitting end don't fuck up the receiving end.

XML itself doesn't provide this for free. But what it does do is make the schema a first-class entity against which documents can be validated. This change, and the toolchains that followed, made the programmatic interface presented by the document format much more evident to onlookers. Put another way, the schema and the serialization format were no longer entangled. That, in turn, made it a whole heck of a lot easier for developers (and even some technical business types) to comprehend the patterns th

Most XML I've seen (except, sadly, the IIS metabase.xml) is a significantly bigger pain in the ass to read than a plain old config file - and even the metabase.xml file is moderately more annoying to read. It's not hard to make a config file safely transmittable either.

It's not going to disappear. i4i has said that certain applications that use XML (Such as Open Office) Do not infringe on their patent. Which means they didn't patent XML, they patented something to do with XML. Which Microsoft used, others do not. Thats why Microsoft is feeling the weight of this and not anyone else.

Since XML was started in '96 by the W3C, and i4i's patent was filed in '98, i4i does not own any of the rights to XML like you are saying.

Yes - Lots of places use XML. However, the chances of it disappearing are even less than the chances of HTML disappearing.

It's sort of like a binary form of XML with the tags stored separately... so not really "normal" XML.

Still far too general and trivial to allow to be patented, once you parse "normal" XML the in memory representation will almost certainly infringe on this patent for instance (a tree structure for the markup with content stored separately is the natural implementation).

On the one hand, it's bad for Microsoft, so slashbot=happy. But it's a Patent win, so slashbot=angry. But it's a win for a small company, so slashbot=happy. But the small company appears to be a patent troll, so slashbot=indignant. But it's band for Microsoft anyway, so slashbot=[error: Stack overflow. Exiting.]

On the one hand, it's bad for Microsoft, so slashbot=happy. But it's a Patent win, so slashbot=angry. But it's a win for a small company, so slashbot=happy. But the small company appears to be a patent troll, so slashbot=indignant. But it's band for Microsoft anyway, so slashbot=[error: Stack overflow. Exiting.]

As far as I can tell, i4i is not a patent troll -- that is, they developed the technology, and developed and marketed a product based in said technology. In fact, this almost looks like a poster boy case for the upside of patents -- the little boy is using his patent to stop the big boy ripping it off. It would look better if it wasn't for the glacial pace with which the trial and appeal have proceeded.

So a typical day on slashdot?Wow 270 million. Or on tenth of the coffee budget of Microsoft I wonder if Microsoft will just pay them off and buy the patent and then use it to attack others.If I was Microsoft and lost my faith that I had a soul that is what I would do.

They could try buying out i4i, but I think i4i would set the price to be very unprofitable, and instead just set an ongoing licensing fee that allows Microsoft to continue operations but that would be very sweet indeed for i4i.